*This order and judgment is not binding precedent, except under the doctrines of lawof the case, res judicata, and collateral estoppel. The court generally disfavors the citationof orders and judgments; nevertheless, an order and judgment may be cited under the termsand conditions of 10th Cir. R. 36.3.

IN THE UNITED STATES COURT OF APPEALSFiled 12/17/96

FOR THE TENTH CIRCUIT

NATHAN H. MONUS, ))

Plaintiff-Appellant, )) No. 95-1099

v. ) D. C. No. 93-S-2160)) (D. Colo.)

COLORADO BASEBALL 1993, INC., )a Colorado corporation; COLORADO )BASEBALL PARTNERSHIP 1993, LTD., )a Colorado limited partnership; PAUL A. )JACOBS; OREN L. BENTON; CHARLES )K. MONFORT; JERRY D. McMORRIS; )STEPHEN S. KURTZ, )

)Defendants-Appellees. )

ORDER AND JUDGMENT*

Before TACHA, HOLLOWAY, and BRISCOE, Circuit Judges.

Plaintiff-Appellant Nathan H. Monus appeals from a judgment of the district courtgranting defendants-appellees' motion for summary judgment and motion to dismiss forfailure to plead fraud with particularity. We have jurisdiction under 28 U.S.C. § 1291.

2

I

This case arises out of the early days of the Colorado Rockies baseball franchise.Plaintiff Nathan Monus was part of the early ownership group. The following organizational structure was put together. The team was to be ownedby a limited partnership -- defendant Colorado Baseball Partnership 1993, Ltd.,which cameinto existence by January 25, 1991. I App. at 122; II App. at 764. The sole general partnerof the limited partnership was defendant Colorado Baseball 1993, Inc., a corporation whichowned 28.57% of the limited partnership. The stock in this corporation was owned by fivemen as follows: John M. Antonucci 35.7%; Michael I. Monus ("Mickey," plaintiff's son)35.7%; Nathan H. Monus ( plaintiff-appellant) 11.9%; John R. Antonucci (father of JohnM. Antonucci) 11.9%; and Cary Teraji 4.8%. The 71.43% of the Colorado BaseballPartnership 1993, Ltd. limited partnership remaining in addition to the 28.57% owned by thegeneral partner was divided up among the limited partners -- including defendants Oren L.Benton, Charles K. Monfort, and Jerry D. McMorris. I App. at 122.

Defendant Paul A. Jacobs is an attorney who was involved in the ownership effortsand who served as counsel to the various entities until he became general counsel andexecutive vice president of the Rockies. II App. at 320. Defendant Stephen S. Kurtz is anaccountant who was involved in various business efforts involving the franchise. Thedefendants will be referred to collectively as the Rockies Defendants, except for defendantKurtz, who is represented by separate counsel and will therefore be referred to only

1Two days earlier, Mickey Monus had been publicly demoted by his employerPhar-Mor, Inc., where he had been president. He was subsequently indicted in the UnitedStates District Court for the Northern District of Ohio. I App. at 83.

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individually. When necessary, the other individual defendants will be referred to by name.On July 29, 1992, Mickey Monus, plaintiff's son, flew to Colorado from his home in

Youngstown, Ohio, and went to the Denver office of defendant Colorado Baseball 1993, Inc.for the purpose of advising that he needed to sever his connections with the ColoradoRockies.1 II App. at 280. Present at that meeting were Mickey, Jacobs, Kurtz, John M.Antonucci and David Karzmer, a friend of Mickey. The result of this meeting was anagreement dated July 29, 1992, whereby Mickey agreed to transfer his stock to defendantsJacobs and Kurtz. I App. at 123-25.

Mickey Monus claimed, however, in an affidavit that defendant Jacobs had proposedthat Mickey's interest in the Rockies would be severed through a "parking" arrangement,whereby Mickey's interest would be removed in name only. II App. at 281. According toMickey, it was understood by all present, including defendants Jacobs and Kurtz, that the"parking" of the stock "would be temporary until such time as [Mickey] could receive arelease from his financial obligations under certain bank notes as well as receive actual valuefor his ownership interests at a fair market value." Id. Mickey also said that the purchase ofhis interest was "never intended to be a final sale." Id. There is nothing in the saleagreement that indicates this alleged understanding.

Later that same day, a telephone call was placed to plaintiff Nathan Monus who was

4

vacationing in Barcelona, Spain. Plaintiff Monus initially spoke with John M. Antonucci,who informed plaintiff that there was a meeting ongoing among Antonucci, Mickey, Jacobsand Kurtz. During the conversation with plaintiff Nathan Monus, attorney Jacobs "instructed[Nathan] that it was imperative and essential to the well-being of Colorado Baseball 1993,Inc. that [Nathan] sever his ownership interests therein," according to Nathan's affidavit.II App. at 276.

Plaintiff stated that he relied on representations of Jacobs that he should sign anagreement of sale and that he relied on Jacobs's representations based upon his understandingthat Jacobs was "acting as [his] legal counsel." Id. An agreement was faxed to plaintiff andhe executed it and faxed it back to Jacobs. Plaintiff states that at no time was he lead tobelieve that the consideration provided for in the transfer agreement was to be the entireconsideration for the transfer of his ownership in Colorado Baseball 1993, Inc. Id. at 276-77.He further says that he "was actively lead to believe that at a later date, additionalconsideration would be provided to him that would reflect fair market value of his shares."Id. at 277.

On September 2, 1992, defendants Jacobs and Kurtz assigned to Defendants Benton,McMorris, and Monfort the stock interests acquired from the Monuses on July 29. Inexchange, Defendants Benton, McMorris and Monfort paid off a $19.4 million loan fromCentre Capital. Plaintiff asserts, however, that he did not receive the $100.00 considerationset forth in the agreement, see Affidavit of Nathan Monus, II App. at 277; that his

5

indebtedness on the loan was not canceled until September 2, 1992; and that Kurtz andJacobs never received the stock, which remained with Morgan Guarantee, to which it hadbeen pledged, until September 2, 1992. Brief of Plaintiff-Appellant Nathan Monus at 15.

Plaintiff Nathan Monus filed this suit in October 1993 naming as defendants ColoradoBaseball 1993, Inc., Colorado Baseball Partnership 1993, Ltd., Paul A. Jacobs, Oren L.Benton, Charles K. Monfort, Jerry D. McMorris, and Stephen S. Kurtz. Nathan Monus'scomplaint averred that the defendants had, under their scheme, proposed the plan by whichboth Nathan and Mickey Monus would "park" their ownership interests with Jacobs andKurtz for token consideration and that the ownership interests would later be resold for itstrue value. Plaintiff alleged 2 counts of breach of contract and 1 count each of the following:civil liability under Rule 10b-5 of the Securities Exchange Act of 1934, attorney malpractice,breach of fiduciary duty, unjust enrichment, common law fraud (intentional and/ornegligent), and tortious interference with contract. I App. at 1-19. As to 2 counts, rescissionof the sale of Nathan's 793 shares in Colorado Baseball 1993, Inc. and restoration of theshares were sought. Punitive damages, attorneys' fees and costs were also demanded.Alternatively, compensatory and punitive damages, costs, interest and attorneys' fees weresought. Id. at 19.

On March 17, 1994, the district court orally dismissed, pursuant to Fed. R. Civ. P.12(b)(6), the securities fraud and common law fraud claims of Nathan Monus's complaint forfailing to allege fraud with particularity as required by Fed. R. Civ. P. 9(b). VII App. at

6

2338. On January 20, 1995, by stipulation all of the claims except the two breach of contractclaims were dismissed as to defendant Kurtz only. Id. at 2344. On January 27, 1995, thedistrict court granted summary judgment to all defendants on the remaining claims inplaintiff's complaint. Plaintiff appeals the district court's dismissal of the securities fraud andcommon law fraud claims and the grant of summary judgment as to the other claims.

II

DISMISSAL OF THE FRAUD CLAIMS

A

We review de novo the dismissal of a claim for failure to plead fraud with particularityas required by Fed. R. Civ. P. 9(b), treating such dismissal as a dismissal for failure to statea claim under Fed. R. Civ. P. 12(b)(6). Seattle-First National Bank v. Carlstedt, 800 F.2d1008, 1011 (10th Cir. 1986) (per curiam). Our role is to review plaintiff's complaint todetermine if it is legally sufficient.

Rule 9(b) provides that "[i]n all averments of fraud or mistake, the circumstancesconstituting fraud or mistake shall be stated with particularity." The particularity requirementapplies to both common law fraud and securities fraud claims. Barrett v. Tallon, 30 F.3d1296, 1300 (10th Cir. 1994) (common law fraud); Farlow v. Peat, Marwick, Mitchell & Co.,956 F.2d 982, 986 (10th Cir. 1992) (securities fraud). As we noted in Seattle-First, 800 F.2dat 1011, approving Judge Doyle's analysis of Rule 9(b) in Trussell v. United Underwriters,Ltd., 228 F.Supp. 757, 774-75 (D. Colo. 1964):

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Rule 9(b) does not, however, require the pleading of detailedevidentiary matter, nor does it require any particularity in connection with anaverment of intent, knowledge, or condition of mind. It only requiresidentification of the circumstances constituting fraud or mistake. Thatrequirement means, in the instant case, that individual plaintiffs should identifyparticular defendants with whom they dealt directly, and from whom theypurchased stock; that individual plaintiffs should designate the occasions onwhich affirmative misstatements were allegedly made to them -- and by whom;and that individual plaintiffs should designate what affirmative misstatementsor half-truths were directed to them -- and how.However, it has been noted that "[s]ince the rule is a special pleading requirement and

contrary to the general approach of simplified pleading adopted by the Federal Rules, . . . itsscope of application should be construed narrowly and not extended to other legal theoriesor defenses . . . ." Wright & Miller, Federal Practice and Procedure: Civil 2d § 1297, at 615(1990) (footnotes omitted).

The district court here, relying solely on the complaint itself, concluded that plaintiffMonus failed to set forth with sufficient particularity: (1) what misrepresentations weremade; (2) which defendants made them; (3) to whom the misrepresentations were made;(4) when they were made; or (5) how the misrepresentations furthered the alleged fraudulentscheme. VII App. at 2248. Therefore, the judge dismissed the fraud claims as to alldefendants, giving plaintiff ten days to file an amended complaint against defendants Jacobsand the two Colorado Baseball entities. Id. at 2248. However, plaintiff Monus filed noamended complaint.

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B

With these principles in mind, we turn to the averments of plaintiff Nathan Monus'scomplaint. The general framework of his allegations has been outlined earlier and we nowfocus on the charges bearing on his fraud claims asserted under the 1934 Act and Rule 10b-5,and his common law fraud theory, respectively relied on in Counts III and VII. The principalaverments on these theories follow:

The complaint states that on July 29, 1992, Michael Monus traveled to Denver to meetwith John M. Antonucci and defendants Jacobs and Kurtz. I App. 5, ¶ 13. Concern wasallegedly raised that Michael Monus's removal as President of Phar-Mor, Inc. and publicitytherewith jeopardized the franchise from the National League and might subject MichaelMonus's ownership interests to interference by his creditors, preventing refinancing of a$19.4 million loan. Id. It was decided "among defendants, both present and not present atthe July 29, 1992, meeting" that Michael Monus be removed from ownership with thebaseball entities and any connection with the Colorado Rockies.

It was averred further that in keeping with their scheme, Jacobs and Kurtz agreed topurchase Michael Monus's ownership interests and that "[d]efendants proposed a plan bywhich plaintiff and Michael I. Monus would 'park' their ownership interests with Paul A.Jacobs and Stephen S. Kurtz in exchange for token consideration, and that the ownershipinterests would later be resold for its true value at a later time . . . ." Id. at 5-6, ¶ 15. Thecomplaint stated that "all defendants, both present and not present at the July 29, 1992,

9

meeting, conspired and devised to remove plaintiff from his ownership interests" in thebaseball entities and any connection with the Colorado Rockies. Id. at 6, ¶ 16.

It was averred that while the meeting was occurring, plaintiff Monus was inBarcelona, Spain. Between 11:00 and 12:00 p.m. on July 29, 1992, plaintiff received a phonecall from John M. Antonucci, originated from Denver. The complaint states that this "callinvolved conversations between plaintiff and several other persons, including John M.Antonucci, defendant Paul A. Jacobs, and plaintiff's son, Michael I. Monus." Id. at 6, ¶ 18.The complaint states that during the call it "was represented by John M. Antonucci, as agentfor defendants Colorado Baseball 1993, Inc. and Colorado Baseball Partnership, Ltd., anddefendant Paul A. Jacobs, that plaintiff had no option but to give up his ownership in sharesfor Colorado Baseball 1993, Inc." Id. at 6. It was alleged that Jacobs, acting in his individualcapacity as owner, as counsel for the other defendants, and for plaintiff, instructed plaintiffthat he [Jacobs] would be sending a sale agreement by fax and Jacobs directed that he signand fax it back immediately. Id. at 7.

The complaint states that "defendants willfully and fraudulently providedmisrepresentations to plaintiff's son . . . with knowledge that he would transmit thesemisrepresentations to his father, such that his father [plaintiff] would reasonably rely uponthe misrepresentations." The discussion among all participants of the July 29, 1992, meetingwas to the effect that the transfers being made on that date by plaintiff and Michael I. Monusto defendants Jacobs and Kurtz were necessary to protect the Colorado Rockies from any

10

interference in the operation of the Rockies by Michael I. Monus's potential creditors. Id. at7, ¶ 20. The agreements "failed to take into account the appreciated value of [the Monuses']interests or to provide payments to them in an amount equal to the fair market value of theirinterests." Id. "[D]efendants" were alleged to have agreed that subsequent to the "parking"of the Monuses' interests, there would be additional compensation to them for their interests.Id.

In the phone conversation Michael Monus innocently perpetuated"misrepresentations" provided "by the defendants." I App. at 8, ¶ 21. The complaint allegesthat it was under attorney Jacobs's instructions and counsel that plaintiff Nathan Monusreceived, signed and sent back the sale agreement. Id., ¶ 24. It was averred that "Defendantsrepresented that they would act in the best interest of plaintiff to sell his interest to defendantsBenton, Monfort and McMorris," and that "defendants falsely represented to plaintiff thatthey were negotiating with defendants Benton, Monfort and McMorris to obtain a fair pricefor plaintiff's interest in the Rockies, when in fact all defendants were, together, coordinatingtheir efforts to obtain plaintiff's interests in the Colorado Rockies for a sum well known tobe well below the fully appreciated value of his stock." Id. at 9, ¶ 26.

It was alleged that on September 2, 1992, several phone calls took place "betweenplaintiff and defendants" to conclude the sale and during them, "various misrepresentationswere made to plaintiff by the defendants including but not limited to" the sale price offeredto plaintiff per share was the same as that offered to John M. Antonucci and John R.

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Antonucci per share and that they were being bought out entirely . . . ." Id. at 9-10, ¶ 27. Infact, John M. Antonucci was permitted to retain 317 shares and to have a bonus of 1.25% ofthe annual revenue of the Rockies. Id. at 10, ¶ 27. It was also represented that the onlyadditional consideration to John M. Antonucci for his sale was his continuation as an at-willemployee of the Rockies; in fact, he had made a 5-year employment contract with theRockies to receive an annual $750,000 salary per year and $5,000,000 as severance pay ifdischarged. Id. at 10, ¶ 27. Other general allegations of misrepresentations and omissionswere charged as well. After the lengthy allegations listed above were made, Count III andCount VII of the complaint summarized by charging that the acts alleged operated as fraudin violation of § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, and commonlaw fraud, respectively.

C

We are persuaded that many of the misrepresentations and omissions averred failedto meet the requirements of Rule 9(b), but that in several instances they were sufficient toavoid dismissal. We will specify below which averments of fraud were sufficient under therule; as to the remainder, we hold they were merely conclusory allegations of fraud thatfailed to state claims of fraud against any defendant. Barrett v. Tallon, 30 F.3d 1296, 1300& n.3 (10th Cir. 1994). As in Barrett, however, accepting the averments as true, as we must,we are persuaded that other allegations noted below state claims with sufficient particularityto avoid dismissal. Barrett, 30 F.3d at 1300.

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1

First, we will note the allegations of fraud that we hold are sufficiently particularized.As to defendant Paul A. Jacobs, it was alleged in paragraphs 19-22, I App. at 6-8, that duringthe July 29, 1992 phone call to Nathan Monus in Barcelona, Jacobs represented that plaintiffMonus had no option but to give up his ownership in shares of Colorado Baseball 1993, Inc.;the discussion among all participants of the July 29, 1992 meeting was to the effect that thetransfers by plaintiff and Mickey to Jacobs and Kurtz being made were necessary to protectthe Rockies from any interference by Mickey's potential creditors and the parties agreed thewritten agreements, at most, would repay the Monuses for a portion of their investment anddefendants agreed that subsequent to the "parking" of their interests, there would beadditional compensation paid to Mickey and Nathan for their interests; that Mickey, in thephone call to Nathan, innocently perpetuated misrepresentations provided by the defendants;and that Nathan reasonably relied on representations of defendants and counsel of Jacobs tosign the agreement relinquishing his interest and send it back. I App. at 8. . Read togetherfairly, these allegations of fraud state with sufficient particularity the elements required bySeattle-First as to defendant Jacobs on the allegations referred to in this Part II-C-1.

2

Among the complaint's allegations in paragraphs 19-22 summarized above, we notethat a reasonably particularized averment was made that John M. Antonucci, "as agent fordefendants Colorado Baseball Partnership 1993, Inc., and Colorado Baseball Partnership

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1993, Ltd." and Jacobs represented that "plaintiff [Nathan Monus] had no option but to giveup his ownership in shares for Colorado Baseball 1993, Inc." I App. at 6, ¶ 19. However,the remainder of the allegations of fraudulent misrepresentations in paragraphs 19-22 becomevague and disconnected as to the actions having any real connection to the baseball entitiesbecause of alleged action by agents of and for the entities. Thus we hold the the attemptedallegations of fraud as to the July meeting, phone call, etc., are not sufficient under Rule 9(b)as to Colorado Baseball 1993, Inc. or Colorado Baseball Partnership 1993, Ltd., or any otherdefendants except Jacobs. Flynn v. Merrick, 881 F.2d 446, 449 (7th Cir. 1989) ("[M]ereallegations of fraud, corruption or conspiracy, averments to conditions of mind, or referralsto plans and schemes are too conclusional to satisfy the particularity requirement, no matterhow many times such accusations are repeated.") (quoting Hayduk v. Lanna, 775 F.2d 441,444 (1st Cir. 1985); Segal v. Gordon, 467 F.2d 602, 608 (2d Cir. 1972) ("The word'conspiracy' does not alone satisfy the specificity requirement of Rule 9(b).").

In sum, we hold that only the allegations of fraud in Part II-C-1 of this order andjudgment, which are charged against defendant Jacobs, comply with Rule 9(b). Accordingly,as to those averments of fraud against Jacobs by plaintiff Nathan Monus, the dismissal isreversed and those claims are remanded for further proceedings. As to all of the remainingaverments of fraud as to all other defendants, the dismissal under Rule 9(b) is affirmed.

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III

THE SUMMARY JUDGMENT ON OTHER CLAIMS

We review a grant of summary judgment de novo, applying the same standard as thedistrict court under Fed. R. Civ. P. 56(c). Universal Money Centers, Inc. v. A.T.& T, 22 F.3d1527, 1529 (10th Cir.), cert. denied, 115 S. Ct. 655 (1994). Summary judgment isappropriate if “there is no genuine issue as to any material fact and . . . the moving party isentitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). We examine the factualrecord and reasonable inferences therefrom in the light most favorable to the nonmovingparty. If there is no genuine issue of material fact in dispute, we must determine whether thedistrict court correctly applied the law. Applied Genetics Internat’l, Inc. v. First AffiliatedSecurities, Inc., 912 F.2d 1238, 1241 (10th Cir. 1990).

A

Attorney Malpractice Claim (Defendant Jacobs)

In his complaint, plaintiff asserted that defendant Jacobs, an attorney licensed topractice in Colorado, committed legal malpractice by "acting to further his own interestswhile providing legal counsel to plaintiff." I App. at 14, ¶ 51. The district judge concludedthat no attorney-client relationship existed between plaintiff and Jacobs and therefore therecould be no liability for malpractice. VII App. at 2350.

In Colorado, attorney malpractice claims are limited to situations in which anattorney-client relationship exists. Mehaffy, Rider, Windholz & Wilson, 892 P.2d 230, 240

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(Colo. 1995). Thus, as a threshold matter, we must determine whether an attorney-clientrelationship existed between plaintiff and Jacobs. The Colorado Supreme Court has said:

An attorney-client relationship is "established when it is shown that theclient seeks and receives the advice of the lawyer on the legal consequencesof the client's past or contemplated actions." People v. Morley, 725 P.2d 510,517 (Colo. 1986). The relationship may be inferred from the conduct of theparties. Id. The proper test is a subjective one, and an important factor iswhether the client believes that the relationship existed. In re Petrie, 154 Ariz.295, 299-300, 742 P.2d 796, 800-01 (1987).

People v. Bennett, 810 P.2d 661, 664 (Colo. 1991). Plaintiff asserts that under this subjectivetest, there was a disputed issue of material fact as to the existence of an attorney-clientrelationship between him and Jacobs. We disagree.

Plaintiff argues that there is a past history of an attorney-client relationship betweenJacobs and himself, and that this history "supports the justifiability of the plaintiff's beliefthat the attorney is currently providing him legal counsel with his best interests in mind."Brief of Plaintiff-Appellant Nathan H. Monus at 36-37. According to plaintiff, coupled withthe urgency of the transaction on July 29, 1992, this gave rise to a reasonable belief that"under the circumstances Jacobs was advising him as legal counsel." Id. at 37. In hisaffidavit plaintiff Monus stated that

5. During the course of his ownership interest in Colorado Baseball1993, Inc., Affiant relied on the advice, legal opinions, and assurances ofdefendant Paul A. Jacobs, Esq. Further, attorney Paul A. Jacobs provided legaladvice to Affiant on other matters which did not relate to Colorado Baseball1993, Inc.'s operation. . . .

. . . .

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8. [During the July 29, 1992 phone call], attorney Paul A. Jacobsconducted a conversation with Affiant. At no time during these conversationswith attorney Paul A. Jacobs, did Mr. Jacobs represent to Affiant that he wasacting on his own behalf in furtherance of his personal interest as an investor,rather than as an attorney rendering legal advise [sic].

. . . .11. Although the terms of the purported agreement (which was to be

faxed to him), were not discussed with him on the telephone, Affiant relied onthe representations of Attorney Jacobs that he should sign the agreement.Affiant relied on Attorney Jacobs' representations based upon hisunderstanding that Jacobs was acting as legal counsel.

II App. at 274-76. In addition, Mickey Monus averred that "[o]n several occasions, during the period

from September, 1990 through July 29, 1992, attorney Paul Jacobs had acted . . . as anindividual attorney offering legal advice for Affiant personally, as well as for his fatherNathan H. Monus." Id. at 280. Neither the plaintiff's statements nor those of his son,however, articulate with any specificity the circumstances of the alleged prior representationor legal advice that Jacobs supposedly gave. There are no dates and no transactionsdescribed in which Jacobs acted as plaintiff's attorney.

Under Fed. R. Civ. P. 56(e), when a summary judgment motion is made and supportedas required, "an adverse party may not rest upon the mere allegations or denials of theadverse party's pleading, but the adverse party's response . . . must set forth specific factsshowing that there is a genuine issue for trial. . . ." (Emphasis added). We have said that thenonmoving party's affidavits "must be based upon personal knowledge and set forth facts that

17

would be admissible in evidence; conclusory and self-serving affidavits are not sufficient."Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (emphasis added) (quotingHall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991)). Neither plaintiff nor his son haveset forth any facts relating to the alleged past attorney-client relationship with Jacobs;instead, they offer conclusory statements that Jacobs had given legal advice to plaintiff.Without some specific facts, these affidavits are insufficient.

However, Jacobs averred that he may have rendered incidental legal advice to Plaintiff pertaining to theColorado Rockies' business affairs. Specifically, at the request of MickeyMonus, I prepared an unused private placement memorandum pursuant towhich Plaintiff and John R. ("Jack") Antonucci were to syndicate at cost aportion of their stock interests in the General Partner. Although draftdocuments relating to the proposed syndication were prepared under mydirection, the documents were never used, and the syndication was neverfinalized. . . . Similarly, I may have given Plaintiff incidental legal advice withrespect to personal guarantees he signed in June 1992 in connection with theCentre Capital and Morgan Guaranty loans. These are the only instances I canrecall where I may have provided Plaintiff with incidental legal advice.

I App. at 119-20. These statements suggest some support for plaintiff's position that Jacobshad provided legal advice to him in the past. However, they are the only evidence in therecord to support plaintiff's belief that Jacobs was acting as legal counsel in the phoneconversation on July 29, 1992. They are insufficient to create a disputed material questionof fact. While the test for determining the existence of an attorney-client relationship is asubjective one, and the alleged client's belief is an important factor, Bennett, supra, webelieve that the alleged client's subjective belief must be reasonable. See In re Petrie, 742

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P.2d 796, 801 (Ariz. 1987) (cited in Bennett); Alexander v. Superior Court, 685 P.2d 1309,1314 (Ariz. 1984)(cited in Petrie). Under the circumstances of the July 29, 1992conversation, no reasonable person in plaintiff's position would have believed that he wasseeking and receiving legal advice from Jacobs.

Our conclusion is supported by plaintiff's own statement that "[i]n every instancewhere there was either oral or face-to-face communication between Affiant and attorney PaulA. Jacobs, these were always in the context of Mr. Jacobs' legal capacity with the ColoradoRockies Baseball Club." I App. at 275 (emphasis added). This statement of plaintiff himselfshows that he knew Jacobs was acting as counsel for the Rockies. This knowledge rendersunreasonable any belief by plaintiff that Jacobs was acting as plaintiff's counsel, despite theincidental legal advice Jacobs had provided in the past. See People v. Bennett, 810 P.2d 661,664-65 (Colo. 1991) ("Further, `[t]he attorney-client relationship is an ongoing relationshipgiving rise to a continuing duty to the client unless and until the client clearly understands,or reasonably should understand, that the relationship is no longer to be depended on."(emphasis added).

Because plaintiff has failed to set forth sufficient evidence that there was in disputea material question of fact as to the existence of an attorney-client relationship betweenJacobs and him, the attorney malpractice claim must fail and the summary judgment thereonwill be sustained.

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B

Breach of Fiduciary Duty (Rockies Defendants) Plaintiff argues that the defendants (except for Kurtz)

breached a fiduciary duty to him by failing to disclose material facts about the value of hisstock. Defendants assert, however, that "no Defendant owed a fiduciary duty to Plaintiff. . . ." Brief of the Colorado Rockies Defendants at 36.

In his complaint, plaintiff identifies the defendants' fiduciary duty as "including butnot limited to the duty owed by majority shareholders, by corporate officers, by directors, andby counsel." I App. at 15, ¶ 55. The district judge granted summary judgment for defendantsas to this claim on the ground that plaintiff

failed to establish the nature or content of the alleged nondisclosure, or eventhat Defendants had any information which would have been subject to anydisclosure in these circumstances (concerning the value of Plaintiff's stock).Because Plaintiff is unable to identify the information which was allegedly notdisclosed to his detriment, or even that such information was available to anyof the defendants at the time, summary judgment must also enter on this claimalso.

VII App. at 2350. The judge also concluded that there was no viable independent claim ofbreach of fiduciary duty against Jacobs because there were no allegations beyond plaintiff'sassertion that Jacobs was acting as plaintiff's attorney. For reasons that follow we concludethat the district court properly granted summary judgment on this claim.

As a threshold matter, we must determine whether plaintiff has presented factsprecluding summary judgment on the issue whether the defendants owed a fiduciary duty to

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plaintiff. In Colorado, "it is a violation of a fiduciary duty for an officer or director of aclosed corporation to purchase the stock of minority shareholders without disclosing materialfacts affecting the value of the stock, known to the purchasing officer or director by virtueof his position but not known to the selling shareholder." Van Schaack Holdings v.Van Schaack, 867 P.2d 892, 899 (Colo. 1994) (emphasis added). However, "absent thecreation of a true fiduciary relationship between the two parties to a transaction,representations made by one party to another in conjunction with that transaction will not,without more, give rise to a confidential relationship. While such representations may giverise to claims for relief on other grounds, they cannot alone create a confidential relationshipso as to give rise to a fiduciary duty." Nicholson v. Ash, 800 P.2d 1352, 1355 (Colo. App.1990).

Prior to September 2, 1992, defendants Benton, McMorris, and Monfort were notshareholders of Colorado Baseball 1993, Inc., nor were they officers or directors. See I App.at 108, ¶ 2 (affidavit of Oren Benton); id. at 110, ¶ 2 (affidavit of Charles Monfort); id. at112, ¶ 2 (affidavit of Jerry McMorris). Instead they were limited partners. There is nothingin the record to indicate their knowledge of, or participation in, the negotiations or sale ofplaintiff's stock on July 29, 1992. Plaintiff contends, however, that Benton, McMorris, andMonfort are liable for aiding and abetting a breach of fiduciary duty by Kurtz and Jacobs, andrelies on our decision in Q.E.R., Inc. v. Hickerson, 880 F.2d 1178, 1182-83 (10th Cir. 1989)(per curiam), where we concluded that the Colorado courts would recognize a claim of aiding

21

and abetting a breach of fiduciary duty. Plaintiff asserts that the evidence suggests thatBenton, McMorris, and Monfort "were the ones responsible for seeing to it that the originalterms of the parking arrangement were dishonored," Brief of Plaintiff-Appellant Nathan H.Monus at 33, but points to no place in the record where such evidence can be found. Norhave we found any. Because this is the only possible claim for breach of a fiduciary dutyclaim which can be asserted against these defendants, we conclude that the district judgeproperly granted summary judgment as to defendants Benton, McMorris and Monfort on thisclaim.

We also conclude that plaintiff's fiduciary duty claim against Jacobs, the corporategeneral partner, and the limited partnership fails. Assuming, without deciding, that thesedefendants owed a fiduciary duty to plaintiff, we see no evidence to support a claim of breachof that duty. Plaintiff asserts that material information regarding the value of his stock wasnot disclosed and that this nondisclosure constitutes a breach of fiduciary duty. Brief ofPlaintiff-Appellant Nathan H. Monus at 20. He stresses the urgency and timing of the July29, 1992 transaction but points to no material information which was not disclosed. Heargues that

no one knew more about the greatly appreciated value of the stock and the"hell of a business" that the Rockies had become than Kurtz and Jacobs; at thevery least, there could have been some effort to estimate its fair market value,and advise [plaintiff] of this, before faxing him a contract which he'd notparticipated in drafting and making him sign it.

Id. at 32. However the assertion that the parties should have attempted to estimate the stock's

2In Van Schaack, a minority shareholder had been kept in the dark by the officers anddirectors, about the value of land owned by the corporation -- land which they knew waslikely to be condemned for use as part of the site of the new Denver International Airport.The value of the land was enormously increased by the prospect that it would be part of theairport site. This information, however, was not disclosed to, and appeared to have beenactively hidden from, a minority shareholder when she was attempting to sell her shares inthe corporation. No such facts are present here.

3Plaintiff makes a general assertion that he was "wronged by people he justifiablytrusted: first, when he compliantly transferred his stock to them in reliance upon theirrepresentations as to the necessity, urgency, and nature of the transfer; and second, whenthey didn't comply with the understanding pursuant to which he had transferred the stock,"Brief of Plaintiff-Appellant Nathan H. Monus at 20. This contention also fails because, aspreviously noted, he can show no fiduciary duty or breach. To the extent this argument is abreach of contract claim, it will be treated in the discussion of the breach of contract claimsin Part III-C, infra.

22

value is a far cry from the repeated and blatant failures to disclose material informationwhich was the linchpin of the Van Schaack opinion, on which plaintiff relies.2

In sum, plaintiff has not set forth what material information was not disclosed to himthat should have been, and thus, his claim for breach of fiduciary duty must fail and again thesummary judgment will be upheld.3

C

Breach of Contract Claims (Defendants Kurtz and Jacobs)

Plaintiff claims breach of two contracts: the written stock transfer agreement and thealleged oral "parking" agreement. The district judge concluded that the written stock transferagreement was an integrated agreement, despite there being no integration clause. He heldthat defendants substantially performed that contract despite plaintiff's claim that he did notreceive the $100 consideration recited in the contract or the benefit of closing by July 31,

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1992, as specified in the agreement. The judge then concluded that the purported oral terms(the alleged "parking" agreement) offered by the plaintiff were terms which would modifythe written contract itself and were therefore barred by the parol evidence rule. VII App. at2347-48.

Plaintiff first takes issue with the district judge's conclusion that there was substantialperformance of the written sale agreement. That agreement provided in part:

C. Seller [Nathan Monus] desires to sell to Purchaser [Jacobs andKurtz] all of the stock of [Colorado Baseball 1993, Inc.,] ownedby Seller.

Agreement1. Seller hereby agrees to sell the Stock to Purchaser and Purchaser

hereby agrees to purchase the Stock pursuant to the terms of thisAgreement.

2. The purchase price for the Stock is $1,000,000.00 payable$100.00 upon mutual execution and delivery of this Agreement,receipt of which is hereby acknowledged by Seller. The balanceof the purchase price shall be due and payable by obtainingcancellation of that certain Secured Promissory Note dated June5, 1992 from Seller, Michael I. Monus, John M. Antonucci,Steven E. Ehrhart and Jack R. Antonucci (collectively"Makers") to Centre Capital Investors, L.P. ("Centre"), andreplacing that certain Letter of Credit in the amount of$19,400,000.00 dated June 4, 1992 issued by the PittsburghNational Bank for the benefit of the Members of The NationalLeague of Professional Baseball Clubs.

3. The closing shall take place on or before July 31, 1992.I App. at 128.

Under Colorado law, a plaintiff seeking recovery for breach of contract must show:

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(1) the existence of a contract; (2) performance by the plaintiff or some justification fornonperformance; (3) failure to perform the contract by the defendant; and (4) resultingdamages to the plaintiff. Western Distributing Co. v. Diodosio, 841 P.2d 1053, 1058(Colo. 1992). The performance element means "substantial" performance, which "occurswhen, 'although the conditions of the contract have been deviated from in trifling particularsnot materially detracting from the benefit the other party would derive from a literalperformance, [the defendant] has received substantially the benefit he expected, and is,therefore, bound to pay.'" Id. (quoting Newcomb v. Schaeffler, 279 P.2d 409, 412(Colo. 1955)). Whether there has been substantial performance is a question of fact for thejury except where the facts are undisputed and only one inference can be drawn reasonably.Little Thompson Water Ass'n v. Strawn, 466 P.2d 915, 917 (Colo. 1970).

Plaintiff argues that there is a disputed factual issue as to whether defendantssubstantially performed the terms of the purchase agreement. Specifically, he contends thatsummary judgment was inappropriate where there was evidence that he did not receive the$100 consideration recited in the agreement and that he did not receive the expected benefitwhen the sale was not closed by July 31, 1992. Brief of Plaintiff-Appellant Nathan H.Monus at 41.

Defendants argue that plaintiff's acknowledgment of the receipt of the $100 in thewritten agreement is binding under Colorado law. See Burch v. Burch, 358 P.2d 1011, 1014(Colo. 1960) (per curiam). However, we note that Burch actually states that "[t]he recital of

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a consideration and acknowledgment of receipt thereof must stand in the absence of contraryevidence." Id. (emphasis added). Here Monus has presented evidence that he never receivedthe $100. II App. at 277 (affidavit of Nathan Monus). We therefore conclude that the recitalof receipt of that consideration cannot be binding for the purposes of summary judgment.

Even though we are remanding this case for further proceedings on the factual issueregarding payment of the $100, we reach the subsequent issue of the proper remedy in theevent the trier of fact concludes that Monus did not receive the $100 payment. The writtenagreement states that "[i]n the event of default by Purchaser, Sellers [sic] sole remedy againstPurchaser shall be to retain the $100.00 paid to Seller and require reconveyance of theStock." I. App. at 129. Monus seeks specific performance of this clause.

However, we conclude, as a matter of law, that even if plaintiff did not receive the$100, defendants substantially performed the terms of the contract. In that event, the onlyconclusion that reasonable jurors could draw from the facts (taken in the light most favorableto Monus) is that plaintiff received the substantial benefit for which he bargained. The termsof the written agreement were that he would sell his shares of the Colorado Rockies inexchange for $1 million. Of the $1 million, $100 was to be paid in cash and the rest to bepaid in the form of a loan cancellation, see I App. at 128, which did occur on September 2,1992. II App. at 589-90. Thus, Monus received the benefit of $999,900 out of $1 millionthrough the loan cancellation. No reasonable person could conclude that 99.99 percentperformance on this contract is not substantial. See, e.g., Plante v. Jacobs, 103 N.W.2d 296

4Indeed, under plaintiff's argument, the written agreement would provide a differentsubstantial performance question if the contract had set forth the consideration as $100, plusthe cancellation of 10,000 loans totaling $999,900, since then plaintiff would be forced toconcede that defendants had fulfilled 10,000 different parts of the contract and failed toperform only one. Yet, this hypothetical contract presents only a difference in form, not theultimate benefit received by plaintiff, which is $1 million. We cannot believe that Coloradolaw considers such differences to be material, and plaintiff has not cited any authority to thiseffect.

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(Wis. 1960) (holding substantial performance where contractor failed to perform workamounting to $1,601.95 on a contract worth $26,765); Crouch v. Gutmann, 31 N.E. 271(N.Y. 1892) (holding substantial performance where damages were sustained of $217compared to contract price of $6,000). Plaintiff argues that this issue is nevertheless one offact because a reasonable jury could conclude that Defendants' failure to fulfill one of the twoforms of consideration is material. We reject this argument as specious. The proper inquiryis "[h]ow much of the benefit that the injured party expected from the exchange has beenreceived?" E. Allan Farnsworth, II Farnsworth on Contracts § 8.12, at 416 (1990).4

However, the fact that defendants' performance was substantial does not excuse themfrom damages for the unfulfilled aspect of the contract. Thus, a party who has performedsubstantially must still pay damages to compensate for the deviation. See, e.g., Cox v.Freemont County Public Building Authority, 415 F.2d 882, 886 (10th Cir. 1969) (applyingColorado law); Little Thompson, 466 P.2d at 917. The amount of damages will be for thetrier of fact to determine, but we reject specific performance as the proper remedy. UnderColorado law, "specific performance is not a matter of right; whether it should be afforded

27

depends on the circumstances of the particular case." Ide v. Joe Miller & Co., 703 P.2d 590,591 (Colo. App. 1985) (citing Emery v. Medal Building Corp., 436 P.2d 661 (Colo. 1968)).Indeed, the burden is on the party seeking specific performance to show that damages are aninadequate remedy, see, e.g., Leach v. Fuller, 173 P.2d 427, 427 (Colo. 1918), whichshowing is lacking here.

Plaintiff also asserts that the "closing" did not occur by July 31, 1992, as required bythe agreement, while defendant asserts that the closing occurred on July 29, 1992. We do notbelieve, however, that the dispute concerning the July 31 closing deadline is material. It isundisputed that on September 2, 1992, plaintiff's obligations under the $19.4 million loanwere relieved. I App. at 109, ¶ 6 (affidavit of Oren Benton). Under Colorado law, "[t]imeis not of the essence of a contract, unless it is made so either specifically or by thecircumstances of the case." Kitt v. Runge, 282 P. 1067, 1067 (Colo. 1929); see also Gerbazv. Hulsey, 288 P.2d 357, 364-65 (Colo. 1955) (holding that time was not of the essencewhere the contract did not so state and the conduct of the parties was clear).

In this case, the contract did not explicitly state that time was of the essence. Moreimportantly, plaintiff has presented no evidence that the parties expected time to be of theessence. There is no evidence that he complained of the delay between July 29, 1992 andSeptember 2, 1992. Nor has he presented any evidence of any harm that he suffered as aresult of the delay. "When the facts are clearly established or are undisputed, the questionof what is a reasonable time is one of law." Colorado Woman's College v. Bradford-

28

Robinson Printing Co., 157 P.2d 612, 615 (Colo. 1945).Under these circumstances, there is only one reasonable inference -- that plaintiff

received substantially all the benefit which he expected to receive. We therefore concludeas a matter of law that defendants Kurtz and Jacobs substantially performed their contractualobligations under the written agreement, and thus they did not breach that agreement withrespect to the closing date.

Plaintiff next challenges the district court's conclusion that the alleged oral "parking"agreement presented terms which would modify the written contract itself and were thereforebarred by the parol evidence rule. The parol evidence rule is a rule of substantive law, In reContinental Resources Corp., 799 F.2d 622, 626 (10th Cir. 1986), and therefore, the doctrineof Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), requires that we apply Colorado law. SeeKlein v. Grynberg, 44 F.3d 1497, 1503 (10th Cir.), cert. denied, 116 S. Ct. 58 (1995).Moreover, the contract expressly states that it is to be governed by Colorado law. I App. at129.

In Colorado, "[a] court should only admit parol evidence when the contract betweenthe parties is so ambiguous that their intent is unclear. . . . In the absence of allegations offraud, accident, or mistake in the formation of the contract, parol evidence may not beadmitted to add to, subtract from, vary, contradict, change or modify an unambiguousintegrated contract." Boyer v. Karakehian, 915 P.2d 1295, 1299 (Colo. 1996); see alsoBuckley Brothers Motors, Inc. v. Gran Prix Imports, 633 P.2d 1081, 1083 (Colo. 1981) ("[i]t

29

is axiomatic that when a document is unambiguous it cannot be varied by extrinsicevidence."). "[H]owever, the parol evidence rule does not bar admission of oralrepresentations which are not inconsistent with the terms of the final written instrument andare not of the type that one would necessarily expect to be incorporated into the finalagreement." Boyer, 915 P.2d at 1295. Here we feel the agreement was not ambiguous andon this score the parol evidence was inadmissible. The contract is sufficiently explicit as toconsideration and performance, and there are no undefined terms having an esoteric meaning.

Plaintiff also contends that the parol evidence rule is inapplicable because there is afiduciary relationship between the parties. Because we have concluded that there was nofiduciary relationship between any of the defendants and plaintiff, we reject that contention.

Plaintiff next argues that the parol evidence rule does not bar the admission ofadditional terms not inconsistent with the written agreement, unless the contract was anintegrated agreement. Brief of Plaintiff-Appellant Nathan H. Monus at 42. He asserts thatthe district judge erred in concluding that the written contract was an integrated contract,notwithstanding the lack of an integration clause. We disagree. "Whether a contract wasintended as an integrated one is . . . a matter of intention. Where it is shown that a writingwas not intended to be fully integrated, terms other than those set forth in the writing may beproved by parol evidence . . . ." Harmon v. Waugh, 414 P.2d 119, 121 (Colo. 1966). On itsface the July 29 agreement provides for the purchase of the stock by Kurtz and Jacobs andsets forth the purchase price and other valuable consideration given in return. In addition,

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the agreement provides that it "may not be amended or revoked except by an instrument inwriting signed by the parties." I App. at 129. This provision indicates that the parties hadreached a complete agreement as to the terms and conditions of the stock sale, had put thoseterms and conditions into the written contract, and wanted to ensure that those terms couldbe altered only by a subsequent written agreement. The contract is complete as is, and weare thus persuaded that the only reasonable inference that can be drawn is that the partiesintended the written contract to be an integrated agreement. We feel the district judgecorrectly held there was an integrated agreement.

It follows that parol evidence which would vary or contradict the terms of the writtenagreement would not be admissible. See Knuppel v. Moreland, 366 P.2d 136, 138 (Colo.1961). The alleged parking agreement would contradict the written agreement. The writtenagreement attached no strings to the purchase of plaintiff's stock by Kurtz and Jacobs.However, according to plaintiff, the parking arrangement was not intended to constitute atrue sale, but only a means of removing the Monus name from the stock. Brief of AppellantNathan H. Monus at 9. The transfer of the stock under the parking arrangement would bea means of holding the stock in escrow so that Jacobs and Kurtz could protect the stock andhold it for the franchise until replacement equity was found. Id. at 10. It is thus clear thatthe parking arrangement conflicts with the written agreement, which provided for anunqualified transfer of plaintiff's stock to Kurtz and Jacobs.

We are persuaded that under the Colorado parol evidence rule, proof of the existence

5Plaintiff Monus argues that although the fraud exception to the parol evidence ruledoes not permit introduction of parol evidence to vary the terms of an agreement as written,it is permissible to prove that fraud or misrepresentation induced one party to contract withanother. Reply Brief of Plaintiff-Appellant Monus at 14.

In Colorado it has been held that it was not error to admit evidence, over a parolevidence objection, concerning allegedly false and fraudulent representations made by adefendant as an inducement that the plaintiffs enter into the contract. Bill Dreiling Motor Co.v. Shultz, 450 P.2d 70, 73 (Colo. 1960). There the Colorado Supreme Court followed therationale of Am. Jur., Fraud and Deceit § 267 that

when fraud enters into a transaction to the extent of inducing a writtencontract, the instrument never becomes a valid contract, and hence, as statedabove, the parol evidence rule is not applicable.

450 P.2d at 73.In Part II-C-1 of this order and judgment, we have set out the fraud allegations by

plaintiff Nathan Monus which we hold are sufficiently particularized to comply withRule 9(b). In connection with those allegations, for the purpose of determining whetherplaintiff establishes his fraud claims identified in Part II-C-1 against Jacobs, the evidence asto the "parking" agreement will not be inadmissible despite a parol evidence objection.

We have noted defendant's argument that under Jack Richards Aircraft Sales v.Vaughn, 457 P.2d 691, 696 (Kan. 1969), even under the fraud inducement exception, it is notpermitted to prove a promise directly at variance with the promise of the writing. We arepersuaded, however, that under the Colorado rule set out in the Dreiling Motor Co. case, theadmission of evidence such as proof of fraud related to the "parking" agreement is admissiblefor purposes we have set out above. This is in accord with the general rule recognized inCalamari & Perillo, Contracts,§ 3-7(c) at 159 3d ed. (1987), that proof of fraud in theinducement may be shown even if the evidence offered specifically contradicts the writingor a merger clause.

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of the alleged oral parking arrangement was inadmissible in proceedings on plaintiff'scontract claims. Thus, plaintiff was unable to prove the existence of this alleged oral contractin litigating those claims and cannot claim that the contract for the sale of stock by NathanMonus was therefore not the binding agreement.5

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D

Tortious Interference with Contract (Defendants Benton, McMorris and Monfort)

Plaintiff alleged that defendants Benton, McMorris and Monfort "schemed, inducedand/or directed the other defendants, through improper conduct, to substantially breachplaintiff's contract and unjustly obtain plaintiff's shares . . . ." I App. at 17-18, ¶ 68. Thisallegation is a claim of tortious interference with contractual relations, a tort which isrecognized in Colorado. See Memorial Gardens, Inc. v. Olympian Sales & ManagementConsultants, Inc., 690 P.2d 207 (Colo. 1984).

The district court concluded that because there was no parking agreement, there could"be no interference with such a nonexistent contract." App. at 2351. Plaintiff's complaintis ambiguous as to which contract he claims was interfered with, as he refers only to"plaintiff's contract." I App. at 18. If he is referring to the July 29 written agreement, thereis no interference because, as discussed in supra Part III-C, the defendants did not materiallybreach the contract. If, on the other hand, he is referring to the alleged parking arrangement,he cannot demonstrate the existence of the alleged parking agreement, and thus there was nocontract with which Benton, McMorris and Monfort could interfere. "[T]o prove intentionalinterference with a contractual relationship it is necessary to show, among other elements,that there was an underlying contract between plaintiff and a third party." Wasalco, Inc. v.El Paso County, 689 P.2d 730, 732 (Colo. Ct. App. 1984) (citing Dolton v. Capitol FederalSavings & Loan Ass'n, 642 P.2d 21 (Colo. Ct. App. 1981)). That being the case, plaintiff's

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claim of tortious interference with contractual relations fails and the summary judgmentrejecting this claim is affirmed.

E

Unjust Enrichment (Defendants Jacobs, Benton, McMorris and Monfort)

Finally, plaintiff argues that the district judge erred in granting summary judgment onhis claim of unjust enrichment. Plaintiff asserts that the defendants succeeded in obtainingvaluable stock from plaintiff at a price approximately $75,000 less than plaintiff had paid forit and well below its appreciated value. He contends that Benton, McMorris and Monfort"received the benefit of a minimum $75,000 savings, received plaintiff's appreciated interestgratis, and retained these benefits despite their actual or constructive notice of the wrong toplaintiff." Brief of Plaintiff-Appellant Nathan H. Monus at 45. He argues that defendantJacobs received a benefit in the form of "promised continued retention as counsel for theRockies," when, according to plaintiff, Jacobs' position had been in jeopardy. Id.

The district court held that "the terms of the express contract . . . supersede theprovisions of an implied contract. . . . Because the Court has concluded that there is nobreach of contract by virtue of the Rockies Defendants' substantial performance of thecontract, the unjust enrichment claim is also inappropriate." VII App. at 2348-49. We agreewith the court's conclusion but for reasons other than those of the district court. SeeSwoboda v. Dubach, 992 F.2d 286, 291 (10th Cir. 1993) (court of appeals may affirm forreasons other than those relied on by the district court, so long as those reasons find support

6We do not suggest that an unjust enrichment claim can permit recovery where, ashere, there is an express contract which has been fully performed. We do not believe theunjust enrichment doctrine can be used to re-write contracts which one party alleges are"unfair," in the absence of evidence of fraud, duress, mistake, or the like.

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in the record). The Supreme Court of Colorado has instructed:

To recover under a theory of quasi-contract or unjust enrichment, aplaintiff must show (1) that a benefit was conferred on the defendant by theplaintiff, (2) that the benefit was appreciated by the defendant, and (3) that thebenefit was accepted by the defendant under such circumstances that it wouldbe inequitable for it to be retained without payment of its value. . . .Application of the doctrine does not depend upon the existence of a contract,express or implied in fact, but on the need to avoid unjust enrichment of thedefendant notwithstanding the absence of an actual agreement to pay for thebenefit conferred. . . . The scope of this remedy is broad, cutting across bothcontract and tort law, with its application guided by the underlying principleof avoiding the unjust enrichment of one party at the expense of another.

Cablevision of Breckenridge v. Tannhauser Condominium Ass'n, 649 P.2d 1093, 1096-97(Colo. 1982) (emphasis added).

We conclude that plaintiff's claim fails under the third prong of the three-part test ofCablevision of Breckenridge. Plaintiff received a substantial benefit from the sale of hisstock -- $1 million and release from his obligations under the $19.4 million loan. Whetherplaintiff received what he considers a "fair" price is immaterial -- he received theconsideration contemplated by the written contract. Having received the benefit of thebargain he agreed to, plaintiff has made no showing that there are inequitable circumstancesjustifying his claim of unjust enrichment.6 We therefore reject his claim of unjust

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enrichment.IV

Accordingly we AFFIRM in part and REVERSE in part the district court's dismissal

of plaintiff Nathan Monus's securities fraud and common law fraud claims; we AFFIRM

the grant of summary judgment in favor of defendants on the remaining claims except hisbreach of contract claims. The breach of contract claims are remanded for furtherproceedings in accord with this opinion. We DENY defendant Kurtz's request for sanctionsand attorney's fees on appeal.

Entered for the CourtWilliam J. Holloway, Jr.Circuit Judge